B-180008, JUN 12, 1974

B-180008: Jun 12, 1974

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WHERE BID WAS SIGNED BY AN AGENT BUT NO EVIDENCE OF AGENT'S AUTHORITY TO BIND ITS PRINCIPAL WAS SUBMITTED UNTIL THE DAY AFTER BID OPENING. PROTESTER'S CONTENTION THAT BID WAS NONRESPONSIVE MUST BE REJECTED SINCE THIS OFFICE HAS HELD THAT THERE IS NO PROHIBITION AGAINST FURNISHING PROOF OF AGENCY SUBSEQUENT TO BID OPENING. WHERE LOW BIDDER FAILED TO RETURN PAGE OF BID FORM CONTAINING MATERIAL PROVISIONS RELATING TO FIRST ARTICLE APPROVAL BID WAS NOT NONRESPONSIVE SINCE STANDARD FORM 33. ON WHICH BID WAS SUBMITTED. AWARD WILL BIND BIDDER TO PERFORM IN ACCORD WITH CONDITIONS OF SUCH DOCUMENTS. UNDER TWO-STEP PROCUREMENT IT IS REASONABLE TO REGARD THE BID AS RESPONSIVE SINCE PLANT SITE INSPECTION COULD REASONABLY REFER TO PREACCEPTANCE INSPECTION REQUIRED BY STEP I AND SUCH CONSTRUCTION IS CONSISTENT WITH PRESUMPTION THAT BIDDER FOUND ACCEPTABLE UNDER STEP I WOULD NOT LIKELY DISQUALIFY STEP II BID BY INSERTING CONTRADICTORY CONDITION.

B-180008, JUN 12, 1974

1. WHERE BID WAS SIGNED BY AN AGENT BUT NO EVIDENCE OF AGENT'S AUTHORITY TO BIND ITS PRINCIPAL WAS SUBMITTED UNTIL THE DAY AFTER BID OPENING, PROTESTER'S CONTENTION THAT BID WAS NONRESPONSIVE MUST BE REJECTED SINCE THIS OFFICE HAS HELD THAT THERE IS NO PROHIBITION AGAINST FURNISHING PROOF OF AGENCY SUBSEQUENT TO BID OPENING. SEE 49 COMP. GEN. 527 (1970); 50 COMP. GEN. 627 (1971). 2. WHERE LOW BIDDER FAILED TO RETURN PAGE OF BID FORM CONTAINING MATERIAL PROVISIONS RELATING TO FIRST ARTICLE APPROVAL BID WAS NOT NONRESPONSIVE SINCE STANDARD FORM 33, ON WHICH BID WAS SUBMITTED, CONTAINED IN "OFFER" PROVISION THE PHRASE "IN COMPLIANCE WITH THE ABOVE", WHICH OPERATED TO INCORPORATE BY REFERENCE ALL INVITATION DOCUMENTS LISTED ABOVE, INCLUDING FIRST ARTICLE APPROVAL PROVISIONS, AND AWARD WILL BIND BIDDER TO PERFORM IN ACCORD WITH CONDITIONS OF SUCH DOCUMENTS. SEE 49 COMP. GEN. 289 (1969). 3. ALTHOUGH INSERTION BY BIDDER OF PLANT SITE AS INSPECTION LOCATION, DESPITE IFB TERMS THAT DELIVERY WOULD BE F.O.B. DESTINATION AND THAT INSPECTION WOULD BE AT DESTINATION, CREATED AMBIGUITY, UNDER TWO-STEP PROCUREMENT IT IS REASONABLE TO REGARD THE BID AS RESPONSIVE SINCE PLANT SITE INSPECTION COULD REASONABLY REFER TO PREACCEPTANCE INSPECTION REQUIRED BY STEP I AND SUCH CONSTRUCTION IS CONSISTENT WITH PRESUMPTION THAT BIDDER FOUND ACCEPTABLE UNDER STEP I WOULD NOT LIKELY DISQUALIFY STEP II BID BY INSERTING CONTRADICTORY CONDITION. SEE COMP. GEN. DECISIONS CITED. 4. ALTHOUGH ASPR 2-407.8(B) DOES NOT PROVIDE FOR AN AWARD BECAUSE OF URGENCY BEFORE EXPIRATION OF THE FILING TIME FOR WRITTEN CONFIRMATION OF AN ORAL PROTEST, CONTRACTING OFFICER'S ACTION IN PROCEEDING WITH AN AWARD BECAUSE OF URGENCY PENDING RECEIPT OF WRITTEN PROTEST NOT PREJUDICIAL TO PROTESTER SINCE PROTEST IS NOT SUSTAINABLE ON MERITS.

TO SPECTROLAB:

ON JULY 23, 1973, THE NAVAL RESEARCH LABORATORY, WASHINGTON, D.C. (NRL), ISSUED A REQUEST FOR TECHNICAL PROPOSALS (RFTP) AS THE FIRST STEP OF A TWO -STEP FORMALLY ADVERTISED PROCUREMENT FOR SOLAR ARRAY SYSTEMS TO BE USED IN SPACE-GROUND DATA RECEPTION AND PROCESSING. ONLY SPECTROLAB (A DIVISION OF TEXTRON, INC.) AND XEROX CORPORATION SUBMITTED TECHNICAL PROPOSALS. ON OCTOBER 11, 1973, NRL ISSUED INVITATION FOR BIDS (IFB) NO. N00173-73-B-0027 TO SPECTROLAB AND XEROX. AFTER THE BIDS WERE OPENED ON OCTOBER 30, 1973, IT WAS DETERMINED THAT XEROX WAS LOW BIDDER WITH A PRICE OF $295,000. SPECTROLAB'S PRICE WAS $297,245.

AFTER RECEIVING AND EXAMINING A COPY OF XEROX'S BID ON BID OPENING DAY, SPECTROLAB ORALLY PROTESTED TO THE CONTRACTING OFFICER THAT THE XEROX BID WAS NONRESPONSIVE. THE CONTRACTING OFFICER REQUESTED SPECTROLAB TO SUBMIT ITS PROTEST IN WRITING BY NOVEMBER 6, 1973. THE RECORD FURTHER SHOWS THAT SPECTROLAB WAS ADVISED THAT DUE TO THE URGENT PRIORITY OF THE PROCUREMENT, AWARD MIGHT HAVE TO BE MADE PRIOR TO RECEIPT OF SPECTROLAB'S WRITTEN CONFIRMATION. NRL AWARDED THE CONTRACT TO XEROX ON NOVEMBER 1, 1973, DESPITE THE FACT THAT SPECTROLAB'S WRITTEN CONFIRMATION OF ITS PROTEST HAD NOT YET BEEN RECEIVED. WRITTEN CONFIRMATION OF SPECTROLAB'S PROTEST WAS RECEIVED ON NOVEMBER 2, 1973.

SPECTROLAB NOW PROTESTS TO THIS OFFICE ALLEGING THAT THE XEROX BID WAS NONRESPONSIVE AND THAT AWARD OF THE CONTRACT TO XEROX BEFORE RECEIPT OF SPECTROLAB'S WRITTEN PROTEST VIOLATED CERTAIN PROCEDURES SET FORTH IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

SPECTROLAB FIRST CONTENDS THAT XEROX'S BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE SINCE NO EVIDENCE OF THE AUTHORITY OF XEROX'S REPRESENTATIVE TO BIND THE COMPANY WAS SUBMITTED WITH THE BID. SPECTROLAB REFERS TO PARAGRAPH 2(B) OF THE INVITATION INSTRUCTIONS AND CONDITIONS (GSA STANDARD FORM 33A MARCH 1969), WHICH STATES THAT "OFFERS SIGNED BY AN AGENT ARE TO BE ACCOMPANIED BY EVIDENCE OF HIS AUTHORITY UNLESS SUCH EVIDENCE HAS BEEN PREVIOUSLY FURNISHED TO THE ISSUING OFFICE."

THE RECORD SHOWS THAT XEROX'S REPRESENTATIVE DID OFFER TO PRODUCE SUCH EVIDENCE OF HIS AUTHORITY WHEN HIS AUTHORITY WAS CHALLENGED BY SPECTROLAB AT BID OPENING. APPARENTLY, HOWEVER, THIS DEMAND WAS NOT PRESSED, AND THE EVIDENCE OF THE REPRESENTATIVES AUTHORITY WAS SUBMITTED TO THE CONTRACTING OFFICER ON THE NEXT DAY, OCTOBER 31, 1973.

THIS OFFICE HAS HELD THAT THERE IS NO PROHIBITION AGAINST FURNISHING PROOF OF AGENCY SUBSEQUENT TO THE BID OPENING AND THAT A FAILURE TO FURNISH SUCH INFORMATION AT BID OPENING WILL NOT RENDER A BID NONRESPONSIVE. 49 COMP. GEN. 527 (1970); 50 COMP. GEN. 627 (1971). ALTHOUGH ACKNOWLEDGING THIS RULE, SPECTROLAB URGES APPLICATION OF THE RULE ENUNCIATED IN 48 COMP. GEN. 369 (1968), TO THE OPPOSITE EFFECT, ON THE BASIS THAT SUCH RULE BEST PRESERVES THE INTEGRITY OF THE COMPETITIVE BID SYSTEM. IN MODIFYING THE RULE ENUNCIATED IN THE 1968 CASE WE STATED IN THE LATER CASES THAT WE BELIEVED IT WAS TOO RESTRICTIVE AND WAS BASED UPON THE UNFOUNDED FEAR THAT SOME PRINCIPALS MIGHT TAKE ADVANTAGE OF A RULE PERMITTING THE FURNISHING OF PROOF OF AGENCY AFTER BID OPENING. FOR THESE REASONS, WE ARE STILL OF THE VIEW EXPRESSED IN THE LATER CASES AND, THEREFORE, THE XEROX BID WAS NOT NONRESPONSIVE FOR FAILURE TO INCLUDE EVIDENCE OF ITS AGENT'S AUTHORITY.

SPECTROLAB ALSO CONTENDS THAT XEROX'S BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE DUE TO XEROX'S FAILURE TO INCLUDE PAGE 11 OF THE BID FORM WITH ITS BID. PAGE 11 CONTAINED MATERIAL AND SUBSTANTIVE PROVISIONS RELATING TO FIRST ARTICLE APPROVAL. SPECTROLAB ALLEGES THAT BECAUSE OF THIS OMISSION, XEROX HAS NOT DEMONSTRATED AN UNEQUIVOCAL INTENT TO BE BOUND BY THE TERMS OF THE MISSING PAGE.

IN THIS REGARD, THE RECORD SHOWS THAT THE BID ENVELOPE SUBMITTED BY XEROX CONTAINED TWO SEPARATE IFB SETS. ONE OF THE IFB SETS WAS COMPLETE, WHEREAS THE OTHER WAS MISSING PAGE 11. THESE TWO SETS WERE STAPLED TOGETHER WITH A COVER LETTER WHICH STATED IN PERTINENT PART:

"ONE OFFER IS TOTALLY RESPONSIVE TO THE SOLICITATION. THE OTHER, AN ALTERNATE LOWER PRICED OFFER, IS BASED ON UTILIZATION OF GOVERNMENT FURNISHED MATERIAL NOT INCLUDED IN THE SOLICITATION, BUT DEEMED TO BE IN THE BEST INTEREST OF BOTH PARTIES."

IN ADDITION, XEROX'S BID PACKET INCLUDED A LOOSE SHEET WHICH WAS PROTRUDING FROM ONE OF THE IFB SETS. XEROX'S REPRESENTATIVE IDENTIFIED THIS LOOSE SHEET AS XEROX'S ALTERNATE BID. THIS ALTERNATE BID WAS DETERMINED TO BE NONRESPONSIVE SINCE IT WAS CONDITIONAL.

THE RECORD IS UNCLEAR AS TO WHICH IFB SET WAS INTENDED TO ACCOMPANY THE ALTERNATE, NONRESPONSIVE BID PAGE. HOWEVER, EVEN IF IT IS ASSUMED THAT THE "COMPLETE" IFB SET WAS TO BE MATCHED WITH THE ALTERNATE BID PAGE, THEREBY LEAVING THE "INCOMPLETE" IFB SET AS XEROX'S PRINCIPLE BID, WE DO NOT FEEL THAT THE OMISSION RENDERED THAT BID NONRESPONSIVE.

THERE IS NO REQUIREMENT IN THE PROCUREMENT LAWS, IN THE APPLICABLE REGULATIONS, OR IN THE PROVISIONS OF THE STANDARD IFB FORMS THAT BIDDERS MUST RETURN WITH THEIR BIDS ALL PORTIONS OF, AND ATTACHMENTS TO, THE INVITATION IN ORDER TO BE ELIGIBLE FOR AWARD OF A CONTRACT. THIS OFFICE HAS HELD THAT IN THE ABSENCE OF SUCH A REQUIREMENT, THE FOLLOWING TEST MUST BE APPLIED IN DETERMINING RESPONSIVENESS:

"*** WHETHER THE BIDDER HAS SUBMITTED HIS BID IN SUCH A FORM THAT ACCEPTANCE WOULD CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH ALL OF THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION." 49 COMP. GEN. 289, 290 (1969).

IN THAT CASE, AS HERE, THE "INCOMPLETE" BID WAS SUBMITTED ON STANDARD FORM 33, WHICH, IN THE PORTION ENTITLED "SOLICITATION", ADVISED BIDDERS IN PERTINENT PART AS FOLLOWS:

"ALL OFFERS ARE SUBJECT TO THE FOLLOWING:

"1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A.

"2. THE GENERAL PROVISIONS, SF 32 JUNE 64 EDITION, WHICH IS ATTACHED OR INCORPORATED HEREIN BY REFERENCE.

"3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.

"4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE. (ATTACHMENTS ARE LISTED IN THE SCHEDULE.)"

IN THE CITED CASE, THERE THEN FOLLOWED A LISTING ENTITLED "COMPOSITION" OF THE VARIOUS FORMS, DOCUMENTS AND SCHEDULES INCLUDED IN THE SOLICITATION. SIMILARLY, THE SUBJECT SOLICITATION INCLUDED A "TABLE OF CONTENTS" LISTING THE SECTIONS AND PAGE NUMBERS OF THE SOLICITATION PROVISIONS, INCLUDING SECTION C, INSTRUCTIONS, CONDITIONS, & NOTICES TO OFFERORS, PAGES 5-12. ALSO IN THE CITED CASE, AS HERE, STANDARD FORM 33 INCLUDED THE FOLLOWING:

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN

CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE FOR RECEIPT OF OFFERS SPECIFIED ABOVE, TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS), WITHIN THE TIME SPECIFIED IN THE SCHEDULE."

WE CONCLUDED IN THAT CASE THAT THE "INCOMPLETE" BID WAS NEVERTHELESS RESPONSIVE AND STATED:

"THE PHRASE, 'IN COMPLIANCE WITH THE ABOVE' IN THIS FORM OF OFFER REFERS TO THAT PORTION OF THE SOLICITATION QUOTED ABOVE WHICH PROVIDES THAT ALL OFFERS SHALL BE SUBJECT TO THE SOLICITATION INSTRUCTIONS AND CONDITIONS, THE GENERAL PROVISIONS, THE SCHEDULE, AND SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE INCORPORATED BY REFERENCE OR LISTED IN THE SCHEDULE AS ATTACHMENTS. SINCE THAT PORTION OF THE SCHEDULE WHICH WAS TITLED 'COMPOSITION' WAS SUBMITTED WITH THE LOW BID IN THE INSTANT CASE, AND IT IDENTIFIED IN DETAIL ALL OF THE VARIOUS CONDITIONS, PROVISIONS, SCHEDULES, CERTIFICATES AND OTHER DOCUMENTS COMPRISING THE TERMS OF THE CONTRACT TO BE AWARDED, IT IS OUR OPINION THAT SUCH REFERENCES IN THE BID SUBMITTED BY THE LOW BIDDER CLEARLY OPERATED TO INCORPORATE ALL OF THE INVITATION DOCUMENTS INTO THE BID, AND THAT AN AWARD TO THE LOW BIDDER WILL THEREFORE BIND HIM TO PERFORMANCE IN FULL ACCORD WITH THE CONDITIONS SET OUT IN THE REFERENCED DOCUMENTS."

BASED UPON THIS RATIONALE, THE XEROX BID WAS NOT RENDERED NONRESPONSIVE BY OMISSION OF PAGE 11.

SPECTROLAB ALSO CONTENDS THAT XEROX'S BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE BECAUSE OF AN ALLEGED AMBIGUITY CONCERNING ITS INTENT TO BE BOUND BY THE REQUIREMENTS IN THE IFB RELATING TO TRANSPORTATION ON AN F.O.B. DESTINATION BASIS AND INSPECTION AT DESTINATION. SPECIFICALLY, SPECTROLAB POINTS TO THE FOLLOWING IFB PROVISIONS IN SUPPORT OF ITS ALLEGATION.

"SECTION H - DELIVERIES AND PERFORMANCE

"PLACE OF DELIVERY

"(1) THE ARTICLES TO BE FURNISHED HEREUNDER SHALL BE DELIVERED ALL TRANSPORTATION CHARGES PAID BY THE SUPPLIER TO THE NAVAL RESEARCH LABORATORY, WASHINGTON, D. C. 20390. BIDS SUBMITTED ON THE BASIS OTHER THAN F.O.B. DESTINATION WILL BE REJECTED AS NONRESPONSIVE.

"SECTION I - INSPECTION AND ACCEPTANCE

"INSPECTION AND ACCEPTANCE OF THE SUPPLIES OR SERVICES TO BE FURNISHED HEREUNDER SHALL BE MADE AT DESTINATION BY THE SCIENTIFIC OFFICER TO BE ASSIGNED AT TIME OF AWARD."

IN LIGHT OF THE ABOVE PROVISIONS, SPECTROLAB CONTENDS THAT THE FOLLOWING PROVISION AS COMPLETED BY XEROX CREATES THE ALLEGED AMBIGUITY.

"SECTION B - INFORMATION TO BE FURNISHED BY BIDDER/OFFEROR

"(4) LOCATION WHERE SUPPLIES WILL BE INSPECTED 300 N. HALSTEAD STREET

(STREET ADDRESS)

PASADENA, CALIFORNIA, LOS ANGELES, 91107

(CITY, COUNTY, STATE, ZIP CODE)"

SPECTROLAB ARGUES THAT XEROX'S STATEMENT CITED ABOVE THAT THE SUPPLIES WILL BE INSPECTED AT THE BIDDER'S PLANT TRANSLATES INTO DELIVERY AT THAT POINT INSTEAD OF F.O.B. DESTINATION AS REQUIRED.

THE CONTRACTING AGENCY TAKES THE POSITION THAT BY FURNISHING THE INSPECTION INFORMATION REFERRED TO IN THE ABOVE-CITED PROVISION (IFB SECTION B(4)), XEROX DID NOT TAKE EXCEPTION TO THE F.O.B. DESTINATION OR INSPECTION AND ACCEPTANCE REQUIREMENTS REFERRED TO IN SECTIONS H AND I OF THE IFB. RATHER, NRL TAKES THE POSITION THAT IN COMPLETING SECTION B(4), XEROX WAS REFERRING TO THE PREACCEPTANCE INSPECTIONS AND TESTS REQUIRED UNDER THE TERMS OF THE RFTP. THIS REQUIREMENT FOR PREACCEPTANCE INSPECTIONS IS SET FORTH IN THE FOLLOWING RFTP PROVISIONS:

"4.0 QUALITY ASSURANCE PROVISIONS

GENERAL - THIS SPECIFICATION REQUIRES THE ESTABLISHMENT OF A QUALITY PROGRAM BY THE CONTRACTOR TO ASSURE COMPLIANCE WITH THE REQUIREMENTS OF THIS CONTRACT. THE PROGRAM AND PROCEDURES USED TO IMPLEMENT THIS SPECIFICATION SHALL BE DEVELOPED BY THE CONTRACTOR. THE QUALITY PROGRAM, INCLUDING PROCEDURES, PROCESSES AND PRODUCT SHALL BE DOCUMENTED AND SHALL BE SUBJECT TO REVIEW BY THE GOVERNMENT REPRESENTATIVES.

"4.1 CLASSIFICATION OF TESTS

THE TESTING AND INSPECTION OF EQUIPMENT SHALL BE CLASSIFIED AS FOLLOWS:

"4.1.1 PREACCEPTANCE TESTS

TESTS CONDUCTED ON EQUIPMENT PRIOR TO DELIVERY FOR PREACCEPTANCE UNDER THE CONTRACT.

"4.1.2 RESPONSIBILITY FOR PREACCEPTANCE TESTING

THE VENDOR SHALL BE RESPONSIBLE FOR THE PERFORMANCE OF ALL TESTS. HE MAY USE HIS OWN OR ANY LABORATORY ACCEPTABLE TO THE PROCURING AGENCY."

ALTHOUGH WE AGREE THAT XEROX'S COMPLETION OF SECTION B(4) STANDING ALONE CREATED AN AMBIGUITY, AS NOTED BY THE AGENCY THE SOLICITATION ALSO INCLUDED OTHER PROVISIONS REQUIRING INSPECTION AT DESTINATION AND XEROX TOOK NO EXCEPTION TO THOSE PROVISIONS. FURTHERMORE, THERE IS A PRESUMPTION IN GOVERNMENT PROCUREMENT LAW THAT A BIDDER FOUND ACCEPTABLE UNDER STEP-ONE WOULD NOT LIKELY DISQUALIFY ITS STEP-TWO BID BY INSERTING A CONDITION IN CONTRADICTION WITH ITS ACCEPTED STEP-ONE PROPOSAL, WHICH INCLUDED THE ABOVE PREACCEPTANCE PROVISIONS, AND THE REQUIREMENTS OF THE SPECIFICATIONS. 52 COMP. GEN. 821 (1973); 50 COMP. GEN. 337, 342 (1970); 45 COMP. GEN. 221, 224 (1965). IN THESE CIRCUMSTANCES, WE BELIEVE IT WAS REASONABLE FOR THE AGENCY TO CONCLUDE THAT THE XEROX BID WAS RESPONSIVE.

SPECTROLAB FURTHER CONTENDS THAT THE AWARD OF THE CONTRACT TO XEROX WAS "IMPROPER AND A NULLITY" SINCE THE CONTRACTING OFFICER ACTED IN DIRECT CONTRAVENTION OF ASPR 2-407.8(B), BY AWARDING THE CONTRACT TO XEROX BEFORE WRITTEN CONFIRMATION OF SPECTROLAB'S ORAL PROTEST WAS RECEIVED OR BEFORE THE TIME SPECIFIED FOR RECEIPT OF THE WRITTEN CONFIRMATION HAD EXPIRED. IN THESE CIRCUMSTANCES, SPECTROLAB CONTENDS THAT THE GOVERNMENT WAS ESTOPPED TO AWARD THE CONTRACT TO XEROX SINCE SPECTROLAB RELIED TO ITS DETRIMENT ON THE CONTRACTING OFFICER'S PROMISE.

ALTHOUGH NRL CONCEDES THAT AWARD WAS MADE PRIOR TO THE RECEIPT OF SPECTROLAB'S WRITTEN CONFIRMATION, IT DENIES THAT AWARD WAS MADE BEFORE THE TIME FOR SUBMISSION OF SUCH WRITTEN CONFIRMATION EXPIRED. NRL CONTENDS THAT SPECTROLAB WAS TOLD THAT IT WOULD HAVE UNTIL NOVEMBER 6, 1973, TO SUBMIT ITS WRITTEN CONFIRMATION, BUT THAT DUE TO THE URGENCY OF THE PROCUREMENT, THE CONTRACT MIGHT BE AWARDED BEFORE THEN. SEVERAL AFFIDAVITS SUBMITTED BY NRL SUPPORT ITS CONTENTION THAT SPECTROLAB WAS INFORMED THAT AWARD MIGHT HAVE TO BE MADE BEFORE NOVEMBER 6, 1973, DUE TO THE EXIGENCIES OF THE PROCUREMENT. IN THIS CONNECTION, WE NOTE THAT ALTHOUGH THE RECORD INDICATES THAT THE CONTRACTING OFFICER WAS AWARE OF THE URGENCY OF THE PROCUREMENT ON OCTOBER 30, 1973, THE DATE SPECTROLAB MADE ITS ORAL PROTEST, IT WAS NOT UNTIL THE NEXT DAY THAT A MEMORANDUM FROM THE HEAD OF THE SPACECRAFT TECHNOLOGY CENTER WAS RECEIVED REQUESTING THAT "EVERY EFFORT BE MADE TO RELEASE THE CONTRACT AS SOON AS POSSIBLE." ALTHOUGH SPECTROLAB CONTENDS THAT THE CONTRACTING OFFICER SET NOVEMBER 6, 1973, AS THE DATE FOR SUBMISSION OF ITS WRITTEN CONFIRMATION, WE NOTE THAT IN THE AFFIDAVIT OF THE SPECTROLAB REPRESENTATIVE TO WHOM THE CONTRACTING OFFICER SPOKE THAT THE SPECTROLAB EMPLOYEE ACKNOWLEDGES THAT THE CONTRACTING OFFICER ADVISED "ME THAT THE TIME HE HAD GIVEN ME *** DID NOT TAKE INTO CONSIDERATION ANY URGENCY SCHEDULE REQUIREMENTS." FURTHERMORE, AS NOTED ABOVE, NRL HAS FURNISHED AFFIDAVITS THAT SPECTROLAB WAS TOLD IT HAD UNTIL NOVEMBER 6, 1973, OR UNTIL THE EXIGENCY OF THE PROCUREMENT DICTATED THAT AWARD BE MADE, WHICHEVER OCCURRED FIRST, TO CONFIRM ITS PROTEST. THEREFORE, WE MUST CONCLUDE THAT SPECTROLAB WAS AWARE OF THE POSSIBILITY THAT AWARD OF THE CONTRACT MIGHT BE MADE BEFORE NOVEMBER 6, 1973.

ASPR 2-407.8(B) DOES NOT PROVIDE FOR AN AWARD BECAUSE OF URGENCY BEFORE EXPIRATION OF THE FILING TIME FOR WRITTEN CONFIRMATION OF AN ORAL PROTEST. HOWEVER, SINCE WE HAVE CONCLUDED THAT SPECTROLAB'S PROTEST IS NOT SUSTAINABLE ON ITS MERITS AND THE TIMING OF THE AWARD, WHETHER BEFORE OR AFTER WRITTEN CONFIRMATION, HAD NO AFFECT ON THIS CONCLUSION, SPECTROLAB WAS NOT PREJUDICED AND XEROX GAINED NO ADVANTAGE. FURTHERMORE, AS NOTED ABOVE, NRL HAD REASONABLE JUSTIFICATION FOR PROCEEDING WITH THE AWARD AND ..END :